Friday, June 9, 2023

Giving Birth to a Nation

This issue of India Legal is dedicated to the nation’s most celebrated and hallowed secular text that is, in its evangelical message, as powerful as any holy book: The Indian Constitution.

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By Inderjit Badhwar

This issue of India Legal is dedicated to the nation’s most celebrated and hallowed secular text that is, in its evangelical message, as powerful as any holy book: The Indian Constitution.

When we celebrated its adoption on November 26th, as we have done each year since 1949, I was left marvelling, as always, how a mere treatise—a book, authored by several diverse minded human beings—on preserving, administering, governing, dispensing justice, preserving liberty and variegated cultures, has survived the vagaries of conflict, injustice, inequalities, social divides, corruption, internecine violence, famine, pestilence and cruelty. 

No matter how many onslaughts it has suffered, the Constitution gifted to us by the mortals who became our Founding Fathers, remains our divine Brahmashastra for use of We The People against any forces that would try and destroy its primacy and undergirding humanistic muscle and sinews that hold aloft India’s nationhood.

Our Constitution smiles down on us. Caringly. It beckons us to live by its ideas and yet challenges us to improve it where we find fault or flaw.

This issue of India Legal pays homage to this document through a series of articles and events celebrating Constitution Day. In these pages, the prime minister reminds us of the Preamble, the chief justice reiterates his commitment to jurisprudential reforms so essential to promote access to justice for all and the critical role of the courts in supporting the autonomy of institutions. Former chief justices, and legal and academic luminaries who have gained world recognition, also celebrate the wisdom and sagacity of the Constitution.

Our Founding Fathers, dedicated to liberty, social justice, the rule of law, freedom of speech and religion, equality of opportunity were like the rishis who shared wisdom and knowledge that was innate. The Directive Principles, were in a manner of speaking, spiritually inherited. Yet, the framers also studied European philosophers and the liberal intellectuals who drafted the guiding documents of America’s freedom and governance.

It is appropriate here to quote directly from Journal of the American Revolution. It is relevant, on India’s Constitution Day to recall the spirit that cemented a sister democracy to a solid foundation. Says the Journal: 

The two greatest documents [the American Founding Fathers] gave to the fledgling republic: the Declaration of Independence and the United States Constitution. People across the religious spectrum, from the most devout believers to the most committed atheists, look to these documents for support. Yet the blessings they offer are mixed. The Declaration contains several references to God, the Constitution none at all. The reasons for this variation reveal a great deal about the founding principles of the United States.

The Declaration of Independence is an apology for revolution. Support for a complete break with Great Britain was growing stronger week by week in the spring of 1776, both in the Continental Congress and in the thirteen colonies at large. On June 7, 1776, a resolution advocating independence was presented to Congress by Richard Henry Lee of the Virginia delegation. Four days later, Congress appointed a committee of five delegates to draft a document explaining the historic separation it would soon be voting on.

The resulting Declaration of Independence, drafted by Thomas Jefferson and edited by his fellow delegates, contains a theory of rights that depends on a Supreme Being, not man, for its validity. The Declaration states that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It is possible to see in these words an affirmation of the Founders’ religious faith, but God-given rights had less to do with theology in the summer of 1776 than they did with rebellion.

Heir creator, the Continental Congress endowed those rights with a legitimacy that knows no parallel in mortal sources. What God has given to man is not enjoyed at the sufferance of any monarch or government. Liberty is the inviolable birthright of all. The right of revolution proclaimed by the Declaration flows directly from this notion of inviolability: it is to secure people’s divinely endowed and unalienable rights that governments, “deriving their just powers from the consent of the governed,” are established. The people consequently have the right and indeed the duty to alter or abolish a form of government that becomes tyrannical. 

In this context, I am reminded of a journal kept by James McHenry (1753-1816) while he was a Maryland delegate to the Constitutional Convention (the assembly which drafted the American Constitution). McHenry records the events of the last day of the convention, September 18, 1787, he wrote: “A lady asked Dr Benjamin Franklin (the most influential member of the drafting committee)—“Well Doctor what have we got a republic or a monarchy?” Retorted Franklin: “A republic madam—if you can keep it.”

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